Perrault v. State

• Decision Date: 27 March 1986
• Docket Number: No. 485S140,485S140
• Citation: 490 N.E.2d 322
• Parties: Russell Andre PERRAULT, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

Page 322

490 N.E.2d 322

Russell Andre PERRAULT, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).

No. 485S140.

Supreme Court of Indiana.

March 27, 1986.

John W. Doehrman, Jeffersonville, for appellant.

Linley E. Pearson, Atty. Gen., Jody Cusson-Cobb, Deputy Atty. Gen., Indianapolis, for appellee.

PIVARNIK, Justice.

Defendant-Appellant Russell Andre Perrault was convicted of Robbery, a class C felony, Resisting Law Enforcement, a class A misdemeanor, and was found to be an habitual offender, on August 30, 1984, by a jury in the Clark Circuit Court. On September 24, 1984, Appellant was sentenced to serve five years for the robbery conviction, to which an additional term of thirty (30) years was added for being found an habitual offender. The Court found the charge of Resisting Law Enforcement merged with the charge of Robbery, thus the proper sentence totalled thirty-five (35) years. Appellant now raises the following three issues:

1. the trial court erred by granting the State's motion to amend the Information;

2. the trial court erred by failing to grant a mistrial; and

3. the trial court erred by admitting certain evidence.

On April 2, 1982, Youngstown Branch of Citizens Bank in Jeffersonville, Indiana was robbed. In the early afternoon, around 2:30 p.m., a light colored black man walked up to a teller and handed her a note stating, "Put all lose (sic) money in bag, no packs, only lose (sic) money. I have a gun please don't make me use it." The teller put five-hundred seventy dollars ($570.00) in loose bills in the paper bag Appellant had handed her. Meanwhile, Kevin Whiteman, the branch manager was alerted to the fact that a robbery was occurring by a clicking surveillance device on his desk. He observed the suspect leave, locked the doors behind him, and immediately called the police. Kevin Whiteman was able to describe Appellant's car and the teller who was robbed described Appellant in detail. The police shortly thereafter sighted Appellant driving and put on their lights and siren, signalling Appellant to stop. However, Appellant sped up, ran several stoplights, ran several cars off the road, and led a long high speed chase, reaching ninety (90) m.p.h. at times. Finally, Appellant after colliding with one vehicle, was immobilized by crashing into a traffic pole. Upon crawling out of the vehicle, he immediately surrendered himself.

I

The original Information filed against Appellant on April 3, 1984, set out two counts: Robbery and Resisting Law Enforcement. On May 14, 1984, the trial court, granted the State's motion to amend the Information by adding an Habitual Offender Count. Appellant argues the trial court erred in granting this motion because it had the effect of changing the potential penalty and constituted a change in the theory of the case and in the identity of the offense. In support, Appellant cites Clifford v. State (1985), Ind., 474 N.E.2d 963 in which we reversed the trial court, holding that changing the potential penalty by amending the charging information constituted a change in the theory of the case and in the identity of the offense. However, as the State clearly points out, Clifford is distinguishable from this case in that in Clifford the defendant was initially charged with Child Molesting, a class D felony, and the Information was amended to charge him with Criminal Deviate Conduct, a class B felony. The amendment in Clifford substituted a distinct crime for the prior criminal charge. However, in the case at bar, the Information was amended to include the Habitual Offender Count which is a sentence enhancement and not a separate crime. In Radford v. State (1984), Ind., 468 N.E.2d 219, we found the trial court did not err in permitting the State to file an habitual criminal amendment six days prior to trial. The holding in Radford was:

"The very nature of the habitual offender charge permits the State to add this allegation at any time up to the moment of trial. When faced with this situation, a defendant has the right to seek a continuance. This continuance must be granted when the defendant can demonstrate prejudice to a substantial right. See I.C. Sec. 35-34-1-5(d) (West 1984 Supp.) In the case at bar, Appellant was notified six days prior to trial of the State's intent. He did not seek a continuance. We find no error by the trial court in permitting the State to amend the information."

In Barnett v. State (1981), Ind., 429 N.E.2d 625, this Court permitted the prosecutor to tender an amended information alleging habitual offender status the day the trial commenced. See also Gilmore v. State (1981) 275 Ind. 134, 415 N.E.2d 70; Howard v. State (1978) 268 Ind. 589, 377 N.E.2d 628, cert. denied 439 U.S. 1049, 99 S.Ct. 727, 58 L.Ed.2d 708.

Appellant now claims the trial court violated Ind.Code Sec. 35-34-1-5(b)(1)(Burns Supp.1985) which requires the State to give written notice of the defendant at any time up to thirty (30) days before the omnibus date of any proposed amendment of the information. Notice here was given twenty-four (24) days before the omnibus date of June 4, 1984. However, Appellant does not claim or show that he raised this question before the trial court nor does he make any argument or cite us to any authority indicating the addition of the habitual offender count violated this code section. In granting the addition of the habitual offender count the trial court made the observation that he doubted Defendant would need a continuance and Defendant neither responded nor made such request. Appellant does not now claim or show that his substantial rights were prejudiced. We find no reversible error. Radford, supra; Barnett, supra; Gilmore, supra; Howard, supra.

II

During the course of trial, Appellant's attorney objected to the State asking Linda Stivers the following question: "I would like to show you what has been marked as State's Exhibits 7 through 11, if you would take a look at those and identify them please?" Linda Stivers developed film of a surveillance camera which recorded the bank robbery. Exhibits 7 through 11 were photographs from the film she had developed. After objecting, defense counsel moved for an order in limine directing the prosecutor and State's witness not to mention the subject matter of the photographs. The trial court granted the motion and stated, "You can state that you are the one that developed them, what they are, but not with regard to subject matter, do you understand that okay?" The following colloquy then occurred when the jury reconvened:

"Mr....